When you're employed, you might have less privacy than you think

14 February 2018

Deputy Prime Minister Winston Peters and Australia's Deputy Prime Minister, Barnaby Joyce, are both involved in considerable publicity about whether elements of their private lives should be subjected to media speculation.

Barnaby Joyce is facing criticism around the breakdown of his 24-year marriage and his new relationship with a former staffer, with whom he is expecting a baby. Joyce says that the personal lives of politicians should not be the subject of media scrutiny.

Meanwhile in New Zealand, Winston Peters is suing leaders of the former government, including Bill English, Paula Bennett, Steven Joyce and Anne Tolley for allegedly breaching his privacy.

Readers will recall the publicity during the 2017 election around the overpayment of Winston Peters' superannuation over several years. He reportedly repaid $18,000 as soon as he became aware of the overpayment and said there had been an error on his part in filling out the forms.

However, Peters is upset that the private information was leaked to the media. Peters said he had an expectation of privacy in respect of his superannuation payments and the leak was a breach of that. Peters says the information was intentionally leaked by the National Party just prior to the election.

Is there a right to privacy in New Zealand? How would other superannuation recipients feel if they were incorrectly overpaid and the details ended up in the news? Do you think there's a legitimate public interest in knowing this sort of information in the case of a senior politician?

There is no absolute right to privacy in New Zealand, although the Privacy Act does set out principles which apply to how private information should be handled. For example, personal information cannot be collected by means which are unfair or unreasonably intrude into an individual's personal affairs.

In 2005, the New Zealand courts developed another protection for privacy in a case brought by Mike Hosking. Hosking took a photographer to court for taking photos of his wife and twin babies on the street. Although Hosking's claim was unsuccessful, the Court of Appeal majority did find that invasion of privacy was a valid legal claim where there was a reasonable expectation of privacy.

Privacy issues come up frequently in the employment context. People applying for a job might find that the public part of their Facebook page is read by the potential employer. It is not unlawful for an employer to do this, although in some circumstances they might risk accusations of discrimination because of the information found. Conversely it would likely be unlawful for a hiring manager to call up an individual's past employer if they have not been put forward as a reference.

Once an individual is employed, an employer may check an employee's emails on the work computer perhaps even where they are about private matters. If an employee uses Facebook on a work computer, the employer is entitled to see all the information that passes through the computer.

In one much-reported New Zealand privacy case Ms Hammond resigned from New Zealand Credit Union Baywide and five days later baked a cake for a private party which said "NZCU f*** you" and "c****". Hammond shared a photo of the cake with just her 165 Facebook friends.

Unfortunately NZCU found out about the cake and bullied an employee who was Facebook friends with Hammond to log on and provide access to the photo. NZCU then widely distributed the photo to recruitment agencies, warning against employing Hammond. NZCU also put pressure on Hammond's new employer to dismiss her.

The Human Rights Review Tribunal found numerous extreme breaches of Hammond's privacy and ordered NZCU to pay a total of $168,070.80

People feel deeply about privacy in the employment context where they think that their personal life is none of the employer's business. These often strongly held views are not unique to New Zealand.

Google is currently involved in litigation regarding privacy in England. Two businessmen, one previously convicted of conspiracy to account falsely and the other of conspiracy to intercept communications, want Google to remove links to information about their old convictions. They claim a "right to be forgotten" exists.

The convictions are old and therefore covered by an English law that says the convictions can now essentially be ignored. The men no longer have to disclose their convictions to potential employers. New Zealand has a similar law with its "clean slate" legislation. What should Google do?

One of the men has been threatened in public places because people have come across the Google links. Others tried to extract money from him because they came across his convictions. He says that as a result of the links continuing to be published by Google he "has been and continues to be treated as a pariah in his personal, business and social life and has been unable to form any new friendships or personal relationships".

The judge hearing the case said that there were two conflicting principles involved; the right to be forgotten and the right to freedom of expression. The judge also said that the UK law was designed so that for all but the most serious offences, people with convictions won't have a lifelong blot on their record and should be able to live without that shadow.

The right to be forgotten has been famously litigated by the Republic of France against Google. The European Court of Justice required Google to remove links to pages that are no longer relevant or are excessive. The European Court of Justice is now set to decide whether the right to be forgotten and the restrictions they have put in place can be enforced beyond EU borders.

Is privacy in New Zealand adequately protected and enforced? Should politicians expect their private lives to be scrutinised? Or do readers think all people should be entitled to reasonable privacy whether or not they are politicians, individuals with previous convictions, or everyday employees?

Human experience repeatedly shows how deeply people want to protect the private aspects of their lives. Public exposure can provoke powerful reactions.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.